Fletcher v Eebme Pty Ltd - [2007] FMCA 1235

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FLETCHER v EEBME PTY LTD

[2007] FMCA 1235

BANKRUPTCY – Investigation by trustee – right to compel production by an associated entity of “books”.

BANKRUPTCY – Investigation by trustee – right to claim privilege against production of books – right not to produce books where to do so in breach of other legislation – formulation of order.

Bankruptcy Act 1966, Part VI Divisions 4A and 4B, ss.5, 19AA, 30, 77A, 139L, 139W
Privacy Act 1988, ss.6, S16A(2), clause 2.1(g) of Schedule 3
National Health Act 1953, s.135AA

Birdseye v Sheahan (2002) 196 ALR 598
Re Steele; ex parte Official Trustee in Bankruptcy v Clayton Utz (a firm) (1994) 48 FCR 236
Cross on Evidence, Byrne & Heydon, at [25 325]
Hillvey v Minister for Community Services and Health (1991) 30 FCR 272
Breen v Williams (1996) 186 CLR 71
Simersall; Blackwell v Bray (1992) 35 FCR 584

Applicant:

WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF ROBERT JOHN COOKE

Respondent:

EEBME PTY LTD ACN 114 490 961

File number:

BRG 562 of 2007

Judgment of:

Wilson FM

Hearing date:

27 July 2007

Date of last submission:

27 July 2007

Delivered at:

Brisbane

Delivered on:

30 July 2007

REPRESENTATION

Counsel for the Applicant:

Mr Wilkins

Solicitors for the Applicant:

Thynne & Macartney

Counsel for the Respondent:

Mr Peden

Solicitors for the Respondent:

Hopgood Ganim

ORDERS

The respondent is obliged to produce the following classes of documents to the applicant, and is hereby ordered to produce the following specific books:
(a)all documents in the respondent’s possession, power or control in respect of amounts that have been received by the respondent as a result of work done or services performed by the bankrupt (whether as the respondent’s employee or otherwise) in the period between 21 September 2005 and the date of this order, provided that such documents not disclose “personal information” of patients of the respondent as that term is defined in s.6 Privacy Act 1988.
(b)
all documents in the respondent’s possession, power or control in respect of expenses (other than expenses of a capital nature) necessarily incurred by the respondent in connection with work done for, or services provided to, the respondent by the bankrupt (whether as an employee or otherwise) in the period between

21 September 2005 and the date of this order, provided that such documents not disclose “personal information” of patients of the respondent as that term is defined in s.6 Privacy Act 1988.
(c)
a summary of the entries in any diary or appointment book maintained by the respondent for the period between

21 September 2005 and the date of this Order that records:
(i)the dates upon which the bankrupt has performed work on behalf of the respondent;
(ii)the nature of work performed on each such date, including the number of patients seen by the bankrupt on each such date.
(d)all documents relating to payments that the respondent has made for, or on behalf of,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Fletcher v Eebme Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] FMCA 1235
Decision Date: 30 July 2007

CaseChat Overview and Summary

The case of Fletcher v Eebme Pty Ltd was heard in the Federal Circuit Court of Australia. The primary issue in this case involved a dispute between the applicant, Fletcher, and the respondent, Eebme Pty Ltd, regarding the production of specific classes of documents and records related to a period of employment and services provided by the bankrupt to the respondent. The court was tasked with determining the extent to which the respondent was obliged to disclose financial and operational records pertaining to the applicant's work.

The central legal issue revolved around the scope and limitations of document disclosure in the context of employment and bankruptcy proceedings. Specifically, the court had to assess the respondent's obligations under the Privacy Act 1988, ensuring that any documents produced did not inadvertently disclose personal information of the respondent's patients. Additionally, the court had to balance the respondent's duty to produce relevant financial records against the need to protect sensitive information that could be exempted under the privacy legislation.

In its reasoning, the court meticulously evaluated the provisions of the Privacy Act and the specific circumstances of the case. It was determined that the respondent was required to produce certain documents and records, but with strict adherence to privacy protections. The court clarified the parameters within which the respondent could disclose information, ensuring that only non-personal information related to financial transactions and work performed by the applicant would be shared. This included financial records, summaries of work performed, and specific payments made under the Executive Service Agreement. The court also noted that the respondent's accounting records for the relevant financial years had to be produced, subject to the exclusion of capital expenses.

The final orders of the court mandated that the respondent produce a comprehensive set of documents, including financial records, summaries of work performed by the applicant, and specific payment details, while ensuring that no personal information of patients was disclosed. This decision provided clarity on the extent of document disclosure obligations in similar employment-related disputes, particularly under the constraints of privacy legislation.

Orders

Orders of the court

The respondent is obliged to produce the following classes of documents to the applicant, and is hereby ordered to produce the following specific books:

(a) all documents in the respondent’s possession, power or control in respect of amounts that have been received by the respondent as a result of work done or services performed by the bankrupt (whether as the respondent’s employee or otherwise) in the period between 21 September 2005 and the date of this order, provided that such documents not disclose “personal information” of patients of the respondent as that term is defined in s.6 Privacy Act 1988.

(b)

all documents in the respondent’s possession, power or control in respect of expenses (other than expenses of a capital nature) necessarily incurred by the respondent in connection with work done for, or services provided to, the respondent by the bankrupt (whether as an employee or otherwise) in the period between

21 September 2005 and the date of this order, provided that such documents not disclose “personal information” of patients of the respondent as that term is defined in s.6 Privacy Act 1988.

(c)

a summary of the entries in any diary or appointment book maintained by the respondent for the period between

21 September 2005 and the date of this Order that records:

(i) the dates upon which the bankrupt has performed work on behalf of the respondent;

(ii) the nature of work performed on each such date, including the number of patients seen by the bankrupt on each such date.

(d) all documents relating to payments that the respondent has made for, or on behalf of, the bankrupt between 21 September 2005 and the date of this order, pursuant to the Executive Service Agreement dated 3 June 2005.

(e) the respondent’s accounting records for the financial years ending 30 June 2006 and 30 June 2007 (including, without limitation, all cashbooks, ledgers or other records of income or expenses) that disclose money received by the respondent as a result of work done or services performed by the bankrupt, and expenses (other than expenses of a capital nature) necessarily incurred by the respondent in connection with that work or services.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.